On August 19, the John W. Kluge Center held the second event in the Pillars of Democracy series, looking at the US presidency. The full event is available here. In the words of Kluge Center Director John Haskell, who introduced the event, the intention of the series is to provide “a full picture of the challenges facing American institutions, and their potential promise.”
Moderator Gary J. Schmitt of the American Enterprise Institute began by laying out some foundations for the discussion. Schmitt noted that although Congress may be described in Article One of the Constitution, US history is more frequently written through the lens of who was president at any given time, reflecting, Schmitt said, the “high expectations we have about the office.” Schmitt said the questions is whether “the presidency still warrant[s] those expectations,” whether it is meeting them, and what could make the presidency serve that role more effectively.
Saikrishna Prakash, of the University of Virginia School of Law, began by describing the presidency as a pillar of democracy that has become larger than the others, “and it threatens to upset the pediment that sits on top, the democracy that we have, in such a way that democracy might become unstable.” While the presidency was designed to be powerful, Prakash said, “it clearly was not designed to be all-powerful.” He pointed to growth in the powers of the presidency over time.
The power to declare war, Prakash said, was not held by the president until the 20th Century, but now is exercised with little restriction. “That’s a fundamental shift in our constitutional structure,” he said. Prakash went on to detail how the presidential powers to make treaties and to take part in lawmaking have grown substantially in recent decades. Partisan divisions play a role as well, he said. The public and congressional allies of the sitting president often applaud a “legally dubious” exercise of power if it advances their preferred policy agenda.
Elaine Kamarck of the Brookings Institution spoke about the changes over the years “in who actually gets to run for president.” Until 1831, she said, Congress used a caucus system to nominate candidates for the presidency. This was replaced by the convention system, which lasted until 1968 and allowed political party leaders to exert a great deal of control over who would win the nomination. “That process favored certain kinds of candidates. It favored candidates with deep ties in the political party. And it favored candidates who other people in government looked at as capable of leading,” Kamarck said. If that system had been in place in 2015, she said, then-candidate Donald Trump would have needed to go to Republican Party leaders in the states to negotiate for their votes. Where Trump’s lack of experience with the practicalities of government endeared him to the primary voters who gave him the 2016 nomination, Kamarck said that party leaders would have likely chosen differently.
Still, although the primary system was first used in 1972, Kamarck said that it “essentially delivered the same kinds of candidates as the old system,” until the 21st century. Then, Presidents George W. Bush, Barack Obama, and especially Donald Trump were elected despite having fewer of the qualifications typically held by past presidents. “The nomination system tends to yield people with communications skills over governance skills,” she said, predicting that both parties will continue to encounter that problem as long as candidates are chosen in primary elections.
Jeffrey K. Tulis of the University of Texas at Austin said that the “growing imperial presidency” and intensified partisan conflict are problems that both stem from “profound congressional abdication of its own powers and responsibilities.” While it looks like the presidency is “imperial,” Tulis said, presidents have actually adhered more closely to their constitutional duties at the same time that congress has neglected many of its own, causing the presidency to step into the power vacuum left behind. Tulis gave judicial nominations as an example of congress abdicating its power. Congress has given “a half century of deference to the president’s picks for nominees to the Supreme Court.” In contrast, the 19th century saw one out of every three nominees turned down by Congress, Tulis said. When Congress does oppose judicial nominees, he said, it is usually over “lower grounds” like evidence of scandal, rather than over judicial philosophy.
Congress can also tie its own hands, Tulis said, in response to a perceived failing, as it has done by giving up some of its budgeting power, “a fundamentally legislative responsibility,” through restrictions on itself that limit the budgets that can be adopted. Even when Congress has attempted to create legislation to limit presidential power, as with the War Powers Resolution, it has resulted in a retreat from exercising its authority, Tulis said. Without a Congress eager to assert its own power, Tulis said that the presidency is likely to continue accumulating power at its expense.
Watch the full event here, and see how the panelists engaged with each other’s arguments.